State v. Noy

Court of Appeals of Washington, Division 1

May 7, 2018

STATE OF WASHINGTON, Respondent,v.STEVEN VAN NOY, Appellant.

Spearman, J.

The
Drug Offender Sentencing Alternative (DOSA), RCW 9.94A.660,
authorizes a sentencing court to impose an alternative
sentence when certain statutory conditions are met. As
relevant here, a person is eligible for a DOSA sentence if
"[t]he offender has not received a drug offender
sentencing alternative more than once in the prior ten years
before the current offense." RCW 9.94A.660(1)(g). We are
asked to decide whether "before the current
offense" means "before commission of the current
offense" or "before sentencing on the current
offense." The plain language of the statute indicates
that the former reading is correct.

Steven
Van Noy was taken into custody after committing a series of
crimes in Pierce, King, and Snohomish Counties. He was
sentenced separately in each county. In Pierce and King
Counties, Van Noy received DOSA sentences. When he was
sentenced in Snohomish County, the court ruled that it did
not have discretion to consider a DOSA because of Van
Noy's Pierce and King County sentences. But because the
Pierce and King County sentences were imposed after Van Noy
committed the Snohomish County offenses, they did not render
Van Noy ineligible for a DOSA sentence. We reverse and remand
for resentencing.

FACTS

Van Noy
became addicted to opioids and methamphetamine in 2014. In
2015, he committed several criminal offenses in Pierce, King,
and Snohomish Counties.[1] In July 2015, Van Noy pleaded guilty to
residential burglary, second degree identity theft, and
unlawful possession of a firearm in Snohomish County. He
sought a DOSA and the court ordered a risk assessment and
chemical dependency evaluation. Van Noy did not participate
in the assessments and he failed to appear for sentencing. A
warrant was issued for his arrest. Van Noy was taken into
custody in Pierce County at the end of 2015.

In
March 2016, Van Noy was sentenced in Pierce County on three
cases involving forgery, identity theft, burglary, and
possession with intent to deliver. He received a prison-based
DOSA sentence for these convictions. In June 2016, Van Noy
pleaded guilty to one count of second degree burglary in King
County. He was sentenced to a prison-based DOSA to run
concurrently with the Pierce County sentence. The judgment
and sentence includes the following handwritten finding:

The court finds that A is eligible for DOSA, because this
DOSA was imposed after Pierce Co. causes (above),
but before treatment has commenced. The court finds that this
is not a separate DOSA for purposes of statutory provision
against no more than 2 DOSA's per 10-yr.
period.[2]

Clerk's
Papers (CP) at 50.

Van Noy
appeared for sentencing on his Snohomish County offenses in
October 2016. He requested a prison-based DOSA to run
concurrently with the Pierce and King County sentences. He
argued that all of his offenses occurred within a short
period of time and were caused by his recent addiction to
heroin and methamphetamine.

The
sentencing court ruled that Van Noy was statutorily
ineligible for a DOSA sentence. The court noted that, if the
parties had agreed to sentence Van Noy's Pierce, King,
and Snohomish County offenses in the same court, he could
have received a DOSA for all of them. But the court ruled
that, because Van Noy had received DOSA sentences in Pierce
County and King County in the previous ten years, it did not
have discretion to consider a DOSA. The court imposed a
non-DOSA sentence running concurrently with Van Noy's
Pierce and King County sentences.

DISCUSSION

Van Noy
appeals his sentence, contending the trial court erred in
ruling that it did not have discretion to consider a DOSA. He
asserts that the ruling rests on an erroneous interpretation
of the DOSA statute.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;The
DOSA statute, RCW 9.94A.660, is part of the Sentencing Reform
Act (SRA). It authorizes a trial court to impose an
alternative sentence including meaningful substance abuse
treatment and rehabilitation incentives when this is in the
best interest of the offender and the community. State v.
Grayson,154 Wn.2d 333, 343, 111 P.3d 1183 (2005). An
offender who receives a DOSA sentence serves about one-half
of a standard range sentence in prison and receives substance
abuse treatment while incarcerated. Id. at 337-38
(citing RCW 9.94A.660). For the balance of the sentence, the
offender receives ...

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